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December 13, 2013

Texas Court of Criminal Appeals

Wehrenberg v. State

No. PD-1702-12                     12/11/13


Is the federal “independent source doctrine,” which allows evidence to be admitted that was initially discovered during an unlawful search but later obtained lawfully through an independent source, applicable in Texas?


Yes. Like the attenuation doctrine, the independent source doctrine does not violate CCP Art. 38.23 because evidence that is initially discovered through illegal means is later legally acquired through the independent source. Read the opinion.

Concurrence (Price, J.):

Because of the language of Art. 38.23, analyses under Texas law should dispense with titles such as “independent source” doctrine and “attenuation” doctrine and instead simply ask, “Was the evidence got at by illegal means?” Read the concurrence.

Dissent (Meyers, J.):

The underlying case was incorrectly decided apart from the independent source doctrine, because the warrant in the case was not obtained with facts that were independent from the initial illegal entry. Read the dissent.


This decision is a long time in coming, and it is very well-written and well-reasoned.  We can now freely use the “independent source” doctrine to support an officer’s actions (usually in a case in which a warrant was ultimately obtained).  But do not get too excited.  The court also explains the differences between the “independent source” doctrine and the “inevitable discovery” doctrine. Inevitable discovery is still not valid in Texas and cannot be used in state criminal cases.

Carrizales v. State

No. PD-0320-13                     12/11/13


When a defendant denied putting screws in a road to slow traffic down, was the circumstantial evidence in the case insufficient to support a criminal mischief conviction under the corpus delicti rule because the State never actually found any screws in the road?


No. The corpus delicti rule applies only to cases dependent on an extrajudicial confession. In all other cases, circumstantial evidence can be sufficient. Read the opinion.


This is a very good circumstantial-evidence decision.  The State could not directly prove that the defendant was the one who placed the screws in the road in front of his residence.  But all of the circumstantial pieces fit together to show that the defendant was reasonably the only person who could have done it.  The court’s opinion also relies upon the “doctrine of chances,” which is often utilized concerning the admissibility of extraneous offenses.  It is unusual to see it applied here regarding the sufficiency of the evidence.

Blackman v. State

No. PD-1575-12                     12/11/13


Was a trial judge bound to uphold a Batson challenge against a prosecutor who dismissed an African-American juror because of her eye contact with defense counsel and her use of the word “accused” in describing a defendant in a previous trial she had been selected for as a juror?


No. The trial judge was within his discretion to find that these racially neutral, demeanor-based explanations were genuine. Read the opinion.


This is a very thorough, well-reasoned, and well-researched Batson decision that carefully shows why the court of appeals got it wrong in this case—again (the court of appeals had previously found the evidence to be insufficient to support the narcotics conviction, and the Court of Criminal Appeals was forced to show the court of appeals how it had reviewed the evidence incorrectly).  If a defendant is relying upon Snyder v. Louisiana to assert that a prosecutor can’t rely upon a prospective juror’s demeanor in exercising a peremptory challenge, show the court this decision.  It does a wonderful job in explaining Snyder’slimited holding.

Johnson v. State

No. PD-0209-12                     12/11/13


1) Was a suspect detained when an officer parked his police vehicle at an angle that partially blocked the suspect’s car, shined his spotlight into the suspect’s car, approached, and asked in a loud voice, “What’s going on? What are you doing out here?”

2) Was the appeals court required to conduct a de novo review of the trial court’s determination that the suspect was minimally detained?


1) Yes. With those facts, a trial court could not reasonably conclude that a reasonable person in the suspect’s shoes would have felt free to leave.

2) Yes. A question of detention versus a consensual encounter is a question of law that must be reviewed de novo

Read the opinion. 

Concurrence (Keller, P.J.):

Even when an application-of-law-to-fact question is subject to de novo review, an appellate court should nevertheless afford deference to the trial court on any underlying issues of historical fact. Read the concurrence. 

Concurrence (Price, J.):

An appellate court should review a mixed question of law and fact de novo unless it happens to “turn” on witness credibility or demeanor. A case turns on credibility or demeanor if the case could be decided based on which party the court believes. In this case, regardless of which set of facts the court credited, the determination of a detention should have been the same. Read the concurrence.

Hollander v. State

No. PD-1447-12                     12/11/13


When a trial court instructed a jury on the use of a statutory presumption, was the defendant “egregiously harmed” when the court did not instruct the jury that it must find the facts underlying the presumption to be true beyond a reasonable doubt?


Yes. The error in the jury charge both affected the very basis of the case and deprived the appellant of a valuable right, which ultimately deprived him of a fair and impartial trial. Read the opinion.

Concurrence (Cochran, J):

Trial judges should not include a reference to any statutory presumption in the jury charge unless they have very carefully included all of the language of §2.05(a)(2) of the Penal Code. Read the concurrence.

Dissent (Keller, P.J.):

The jury found the requisite elements of the crime to be true beyond a reasonable doubt, even if they were not properly instructed in the jury charge. Read the dissent.


This case should help to remind prosecutors that, when a jury charge includes reliance upon a presumption, the jury charge must also include the language set forth in §2.05 of the Penal Code.

Moreno v. State

No. PD-1731-12                     12/11/13


Was there sufficient probable cause to support a search warrant when the affidavit described a controlled purchase in which an unidentified individual of unknown credibility and reliability actually bought the drugs?


Yes. Police observations of the controlled purchase and the reasonable inferences from those observations were sufficient to support a finding of probable cause. Read the opinion.

Concurrence (Cochran, J):

The magistrate made the only reasonable inference from the facts. Read the concurrence.


This is a very standard decision on the sufficiency of a narcotics search warrant affidavit based upon a confidential informant and a “controlled buy.”  Apparently, it is necessary because courts still get the controlling law and standard of review wrong from time to time.  Read up on this decision if you are relying upon a controlled buy in support of a narcotics search warrant

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